The Wyoming Governor's and the U.S. Senate's Unnoticed Options, Under the Seventeenth Amendment, for Filling the Senate Vacancy Created By Senator Thomas's Death

This week's unfortunate death of Republican United States Senator Craig Thomas from Wyoming raises complex, if largely unnoticed, constitutional questions.

The consensus among the pundits is that Thomas's departure from the closely divided Senate will have no short-term effect on the partisan balance there because although the Wyoming Governor is a Democrat, state law provides that when picking a temporary replacement to serve until an election can be held in 2008, the Governor must choose from among three candidates put up by the leadership of the state GOP - the party represented by the fallen incumbent.

This description of Wyoming law is accurate: The state elections code indeed directs that, in the event of a Senate vacancy among the Wyoming Senate contingent, the central party committee of the party represented by the prior incumbent is to submit three names of qualified persons to the Governor, who "shall" then choose one of the three to serve in the Senate until a popular election is held.

What is dubious, however, is whether this Wyoming statutory scheme is valid under the U.S. Constitution. Perhaps, in the spirit of bipartisanship or out of a desire to respect voter wishes, a Democratic Wyoming Governor should consider, and maybe even tap, a Republican temporary replacement for Thomas. But whether the Governor can legally be forced to pick one of the three persons served up by state GOP leaders is an entirely different matter.

The Key Provision: Section 2 of the Seventeenth Amendment

The key provision to consider is Section 2 of the Seventeenth Amendment, an alteration of the Constitution added in 1913 to guarantee direct popular election (as distinguished from state legislative selection) of U.S. Senators. Section 2 says:

"When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct."

There is a very strong textual argument that the Seventeenth Amendment prevents the Wyoming legislature from dictating the Governor's choices in making a temporary appointment: The Amendment's language differentiates between a state "legislature" and a state "executive" authority, and allows a state legislature not to make or constrain any temporary appointments itself, but rather only to "empower the [state] executive to make [the] appointment."

In other words, the Amendment, by its terms, creates potential appointment power only in Governors; it does not authorize legislatures to participate in such appointment decisions, beyond simply determining whether the Governors should be allowed to make temporary appointments or not.

This textual argument that the legislature has no authority to regulate the Governor's substantive choices is reinforced by the last five words of Section 2 of the Seventeenth Amendment - "as the legislature may direct." This clause refers to, and confirms, the legislature's broad discretion as to the timing and procedures of any special election to be held to fill the vacancy. By contrast, the provisions concerning gubernatorial temporary appointment lack any similar language suggesting legislative discretion with respect to the process of such gubernatorial appointment -- which strongly suggests that the legislature does not have broad powers here.

One Possible But Unavailing Counterargument: A Claim Based Upon State Legislative Power to Avoid Temporary Appointments Altogether

It is true that the Amendment does permit state legislatures to simply not authorize gubernatorial temporary Senate appointments altogether. But the power to decide whether the governor should be able to appoint is not the same as, and does not subsume, the power to dictate who shall be appointed.

We can see this when we look at the Appointments Clause of the federal Constitution, in Article II. That Clause gives Congress the power to "vest" appointment of inferior federal officers in the President alone, or in Cabinet members. But Congress' power to vest appointment authority in a Cabinet Secretary does not give Congress the power to generate a list of three names from which the Secretary can be forced to choose.

Moreover, Congress should have more power in this regard than do state legislatures under the Seventeenth Amendment; Congress, after all, creates federal offices that are to be filled, whereas state legislatures do not create the United States Senate or any other federal institution.

The upshot, then, is that while state legislatures can deny Governors the power to make temporary Senate appointments entirely, once they decide under the Amendment to authorize gubernatorial temporary appointments, they cannot unduly constrain Governors' exercise of that power.

This makes a great deal of sense, given that the overall goal of the Seventeenth Amendment was to get state legislatures - and the party cronies who were thought to control state legislators -- out of the business of deciding who should serve in the U.S. Senate.

Can Governors Be Forced to Make Senate Appointments?

There is another way in which the Wyoming statute likely impermissibly constrains the Governor, as well. Not only does the statute purport to limit the Governor to three party-generated choices, it also purports to require him to make an appointment (within days of receiving the three names).

But this, too, seems problematic, under a careful reading of Section 2 of the Seventeenth Amendment. That provision says state legislatures "may empower" (emphasis added) governors to make temporary appointments, until the people fill the vacancies by election. "Empower" does not mean "require"; rather, it means "to create the power to do or not do something." The Constitution generally distinguishes between powers and duties, and the Seventeenth Amendment's words seem to speak only to possible gubernatorial powers, not any gubernatorial duties.

Thus, it is not at all clear that governors must exercise temporary appointment authority, even when that authority is validly created by the legislature.

How Would the Supreme Court Feel About All of This?

Now some might find the arguments I have made rather technical and formalistic. After all, the federal Constitution does not, as Justice John Paul Stevens has observed, create state institutions "out of whole cloth, but rather takes them as they come - as creatures born of, and constrained by, state" law. And the Supreme Court did, in some early Twentieth Century cases, interpret other language in the federal Constitution as not preventing states from structuring their own internal processes as they saw fit, even when states were invoking those processes to discharge powers or obligations created by the federal Constitution.

So, for example, in Smiley v. Holm, the Supreme Court in 1932 said that the fact that Article I of the Constitution directs state "legislatures" to draw congressional district lines does not prevent a state from involving the state Governor - through his veto power -- in the state lawmaking process used to draw federal district boundaries.

If Article I's reference to "legislatures" did not foreclose gubernatorial involvement in Smiley, then maybe (one might argue) the Seventeenth Amendment's reference to state "executive authority" ought not to foreclose state legislative involvement in temporary Senate appointments.

One big problem with this reasoning, however, is that many members of the Supreme Court have, in recent years, seemed to disagree with it, and to disregard cases like Smiley. The language quoted above from Justice Stevens came from his dissenting opinion in Bush v. Gore -- a case where a majority of Justices seemed to embrace precisely the kind of formalistic reading of the word "legislature" that would render Wyoming's law problematic.

In Bush v. Gore, a concurring opinion by Chief Justice Rehnquist and Justices Scalia and Thomas (an opinion that likely had the tacit support of Justices O'Connor and Kennedy, as well) concluded that when the federal Constitution, in Article II, enlists state "legislatures" to determine the method of selecting members of the so-called presidential electoral college, the Constitution necessarily forbids states from involving state courts in a way that interferes with the state legislature's wishes.

That kind of interference, these Justices thought, was precisely the federal constitutional violation happening in Florida in late 2000: Florida courts were trammelling the unfettered discretion the federal Constitution gave, by use of the word "legislature" in Article II, to the state legislature.

But if Article II's specific reference to state "legislatures" insulates those legislatures from judicial oversight that otherwise would be provided for under state law, then the Seventeenth Amendment's reference to "executive authority" surely insulates governors from state legislative constraint, once the legislature has empowered the governor to make a temporary appointment in the first place.

Indeed, one could argue that the Seventeenth Amendment's differentiation between governors and state legislatures (and their respective roles) is even textually crisper than Article II's empowerment of state legislatures and disempowerment of state judiciaries. (In this vein, note that the pre-Seventeenth Amendment version of the Constitution, before the advent of popular Senate elections, directly authorized governors to make temporary appointments to fill Senate vacancies. It did not even give state legislatures the choice of whether to empower governors in this regard.)

An Alternative (And More Appropriate) Court: The United States Senate Itself

Perhaps more important than Supreme Court tea leaves, however, is the possibility (likelihood?) that it would be the (Democrat-controlled) Senate, and not a (Republican-dominated) federal judiciary, that would ultimately decide many of the questions surrounding the Seventeenth Amendment that I have raised here.

The Constitution makes each house, including the Senate, the "Judge of the . . . Qualifications of its own members." So if the Wyoming Governor decided to appoint someone outside of the three names submitted to him, it would arguably fall upon the Senate to decide whether this person was "qualified" to be appointed, such that the Senate would have to decide what it thought the Seventeenth Amendment did or did not mean.

Indeed - and this is a big point - if a majority of Senators believe that the constitutional flaws in Wyoming's statute I have identified are unseverable from the part of the Wyoming statute that authorizes the Governor to make temporary Senate appointments in the first place, the Senate could legitimately conclude that there is no valid "empower[ment]" of the Wyoming Governor under the current scheme, and reject as unqualified (and therefore refuse to seat) anybody the Governor appoints, including people on the list of three he will shortly get.

Under this -- quite plausible -- scenario, the vacancy from Wyoming would remain unfilled until either a popular election had been held, or until the Wyoming legislature passed a new gubernatorial authorization that would be free of the impermissible restraints and that would allow the Governor to appoint a Democrat and/or a caretaker Republican who would not run in 2008. Such an outcome of continued vacancy would, of course, influence the partisan makeup of the Senate in the meanwhile.

And under the so-called "political question" doctrine (which, many readers may recall, most analysts thought should have been invoked in Bush v. Gore itself), federal courts might very well say that, since the Constitution gives to the Senate the power to judge the qualifications of its members, federal courts ought to stay out of all these disputes.

So What's a Poor Governor to Do? The Options That Are Available.

So in light of all this, what are the Wyoming Governor's options, especially if he doesn't particularly like any of the three candidates served up to him?

First, the Governor could, as noted above, simply decline to appoint anyone - either because he is "empowered" but cannot be mandated to make an appointment, or because he thinks the unconstitutional parts of the Wyoming statute cannot be severed, meaning that the entire statute fails and there is simply no valid statutory authorization in the first place (or for both these reasons).

If the Governor himself finds the constitutionally-flawed parts of the statute to be severable, then he could pick the person in the state who he thinks would make the best temporary Senator, even if that person is a Democrat.

Or, if the Governor wants to set a precedent that the statute cannot legally bind him, but wants to nonetheless be bipartisan, then he could pick a Republican who was not among the three persons submitted to him. That may be the most intriguing option of all.

And then, depending on what the Governor does, the matter should move to the Senate itself, for any adjudication it may need or want to make about seating any person chosen by the Governor.

But whatever the Governor and the Senate decide to do in the end, they should start by realizing that the state statutory regime the punditry is taking for granted cannot, and therefore does not, constrain in the way everyone is assuming.

Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.